R (Nassery) v London Borough of Brent
| Jurisdiction | England & Wales |
| Judge | Lady Justice Arden,Lord Justice Moore-Bick,Lord Justice Ward |
| Judgment Date | 11 May 2011 |
| Neutral Citation | [2011] EWCA Civ 539 |
| Docket Number | Case No: C1/2010/2051 |
| Date | 11 May 2011 |
| Court | Court of Appeal (Civil Division) |
[2011] EWCA Civ 539
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(QUEEN'S BENCH DIVISION) (ADMINISTRATIVE COURT)
HHJ ROBINSON (SITTING AS A DEPUTY HIGH COURT JUDGE)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Ward
Lady Justice Arden
and
Lord Justice Moore-Bick
Case No: C1/2010/2051
Miss Kerry Bretherton (instructed by ( Hackney Community Law Centre) for the Appellant
Miss Siân Davies (instructed by LB Brent, Legal Services) for the Respondent
Hearing date: 22 February 2011
The question for decision on this appeal is whether the judge was in error or not in refusing to set aside the decision of the respondent local authority, the London Borough of Brent ("Brent"), that the appellant, Mr Amir Nassery, is not entitled to support under section 21(1) of the National Assistance Act 1948 (as amended and now in force) ("the NAA"). Section 21(1) enables a local authority to provide accommodation for a person in need of "care and attention" for the purposes of that section, and I will refer to such accommodation as "supported accommodation". Mr Nassery has been assessed as having a personality disorder, and suffers from mental illness, as I describe in more detail below. He has certain needs and the local authority had to assess how those needs should be addressed.
Section 21 of the NAA
Section 21 of the NAA provides so far as material:
"21 Duty of local authorities to provide accommodation
(1) Subject to and in accordance with the provisions of this Part of this Act, a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing—
(a) residential accommodation for persons aged eighteen or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them; [and …
(b) …
(1A) A person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies may not be provided with residential accommodation under subsection (1)(a) if his need for care and attention has arisen solely—
(a) because he is destitute; or…
…
(2) In making any such arrangements a local authority shall have regard to the welfare of all persons for whom accommodation is provided, and in particular to the need for providing accommodation of different descriptions suited to different descriptions of such persons as are mentioned in the last foregoing subsection.
(2A) In determining for the purposes of paragraph (a) or (aa) of subsection (1) of this section whether care and attention are otherwise available to a person, a local authority shall disregard so much of the person's resources as may be specified in, or determined in accordance with, regulations made by the Secretary of State for the purposes of this subsection.
(2B) In subsection (2A) of this section the reference to a person's resources is a reference to his resources within the meaning of regulations made for the purposes of that subsection.
(3) …
(4) …
(5) References in this Act to accommodation provided under this Part thereof shall be construed as references to accommodation provided in accordance with this and the five next following sections, and as including references to board and other services, amenities and requisites provided in connection with the accommodation except where in the opinion of the authority managing the premises their provision is unnecessary.
(6) …"
The emphasis in section 21(1) is on the need for services. Thus, in R (Westminster City Council) v National Asylum Support Service [2002] 1 WLR 2956 at [32], Lord Hoffmann observed that the obligation was owed to the wealthy as well as the poor.
Supported accommodation can be of many different kinds, but what Mr Nassery seeks in this case is accommodation with regular visits by a social worker with whom he could discuss the day-to-day problems that he has. At the start of these proceedings he was homeless, which no doubt did not assist his mental health problems, but his immigration status has recently been clarified by the grant of indefinite leave to remain. Brent is now bound to consider any application made by him as a homeless person, but no such application has yet been made and Brent may not accept the full housing duty applies to him. As his case is that that sort of accommodation does not meet his needs this court has permitted him to continue with his appeal.
Section 21(1) should be read with Department of Health Circular (93) 10 issued for the purposes of section 29(1) of the NAA. This enables a local authority with the approval of the Secretary of State to make arrangements for promoting the welfare of persons for persons ordinarily resident in the area of that authority to which this section applies. Those persons include persons aged 18 or over who suffer from mental disorder of any description. Section 29(1) does not, however, entail the provision of accommodation. Under paragraph 2 of the appendix to this circular, the Secretary of State, giving approvals and directions under section 29 of the NAA,
"approves the making by local authorities of arrangements under section 29 (1) of the Act for all persons to whom that subsection applies and directs local authorities to make arrangements under section 29 (1) of the Act in relation to persons who are ordinarily resident in the area for all or any of the following purposes –
(a) to provide a social work service and such advice and support as may be needed for people in their own homes or elsewhere;
(b) …"
Needs assessments are very important in this context, and no doubt require considerable experience and care to complete. Brent has carried out an assessment of Mr Nassery's needs under section 47 of the Community Care Act 1990 ("the 1990 Act"). There were several strands involved in that process. I will refer to this in more detail below but I now set out for completeness the statutory requirement for this:
"47 Assessment of needs for community care services
(1) Subject to subsections (5) and (6) below, where it appears to a local authority that any person for whom they may provide or arrange for the provision of community care services may be in need of any such services, the authority—
(a) shall carry out an assessment of his needs for those services; and
(b) having regard to the results of that assessment, shall then decide whether his needs call for the provision by them of any such services…."
By virtue of section 47(8), the definition of "community care services" in section 46 of the 1990 Act applies, and such services include services that a local authority may provide under section 21(1) of the NAA.
Background
Mr Nassery, is an Iranian national who has claimed asylum here. He is 28 years old. He has some physical problems with his leg which he says occurred during torture in Iran. No reliance is placed in these proceedings on problems associated with his physical health.
Mr Nassery suffers from mental health problems. He has been diagnosed as having an emotionally unstable personality disorder or an adjustment disorder with predominant disturbances of emotions. He has a history of self-harm and also (to a much lesser extent) of harming others. He has engaged in a range of behaviour including: dousing himself in petrol, drinking petrol, storing petrol in his room, self-harming by cutting himself, taking pills in an attempt to commit suicide, and pouring petrol on himself and sitting on train tracks outside Euston station. He has twice been detained under section 2 of the Mental Health Act 1983 as being a danger to himself and others. Recently there have been fewer attempts at self-harm but Mr Nassery has assaulted his girlfriend on two more recent occasions.
On 25 March 2008, Mr Nassery's claim for asylum was turned down, and on 23 May 2008 his appeal against that decision was dismissed. On 21 October 2008 he was referred by the Refugee Council to the respondent, London Borough Council ("Brent") as a person in need of care and attention, in part because his mental health problems prevented him from caring for himself and led to a lack of motivation in dealing with daily tasks. Brent assessed Mr Nassery and by letter dated 23 October 2008 rejected that need on the grounds that was no evidence he needed help with daily tasks. Mr Nassery's solicitor criticised that decision and as a result Brent retook the decision on 10 December 2008 but did not alter their conclusion.
In January 2009, Mr Nassery called an ambulance, saying his mind was telling him to kill himself. He then took an overdose of psychiatric medication. He was hospitalised. However on 6 January 2009, he was discharged and went home and he then started to self-harm himself with scissors. He returned to hospital. On 26 January 2009 he made a claim for asylum. On 4 March 2009, Mr Nassery told his solicitor that, if his asylum claim failed, and he was detained for deportation, he would commit suicide. On 17 April 2009, Dr Hopkins of the Medical Foundation for the Care of Victims of Torture reported that Mr Nassery suffered from nightmares, had a chronic low mood, and a long-standing suicidal ideation, and had tried to kill himself on over 12 occasions. Dr Hopkins therefore thought that Mr Nassery was depressed and was suffering from post-traumatic stress disorder.
On 21 April 2009, Mr Nassery was admitted to hospital after an overdose. He absconded, saying he was going home to pour petrol over himself. Petrol was later removed from his room. The same thing happened on 22 April 2009, when he had also cut his arm. On 22 April 2009, he was admitted to a psychiatric...
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R Adalberto Jesus De Almeida v Royal Borough of Kensington and Chelsea
...even though the extent of his need for care and assistance fluctuates from time to time. For example, in R (Nassery) v Brent LBC [2011] EWCA Civ 539 the Court of Appeal upheld the Council's assessment that, despite the claimant's sporadic past episodes of mental disorder, he was not "in ne......